Jewish World Review July 25, 2005 / 18 Tamuz 5765
John H. Fund
18 Years Is Long Enough: It's time for term limits for Supreme Court justices
John Roberts is only 50 years old. That means, should he be confirmed, he could be issuing opinions "when my granddaughter is in her 30s . . . and she was born just a year ago," noted liberal and Harvard University law professor Larry Tribe put it recently.
Is this something even the right should be celebrating? Do we really want lifetime tenure for Supreme Court justices? The Framers of the Constitution, of course, gave us this judicial sinecure for the express purpose of insulating the courts from political pressures of the moment. But then again, 220 years ago life expectancy wasn't what it is today and the courts had yet to claim the power of "judicial review," the power to determine which laws meet constitutional muster. For the Founders, the courts did not exercise the sweeping, unaccountable power they do now. That's one reason why many people are now coming around to the notion of instituting an 18-year term limit on Supreme Court justices. They include conservatives such as former presidential candidate Steve Forbes and liberals such as Paul Carrington, the former dean of Duke University's law school.
A seat on the high court is now so powerful and so heady that many justices stay long past their prime. Legal scholars have concluded that half of the last 10 retirees have been too feeble or inattentive to fully participate in the work of the court. While his health has improved and he rallied to oversee President Bush's swearing in, Chief Justice William Rehnquist was unable to attend oral arguments this past winter and spring.
The secrecy that shrouds the high court can also allow someone to turn his chamber into a nursing home, as William O. Douglas did in the 1970s. He was so determined to hang on until a new president could appoint someone philosophically compatible with him that he refused to leave after an incapacitating stroke. This is not only irresponsible, but for, say, a liberal justice hanging on through a series of Republican presidents, it is directly at odds with the preferences of the electorate. In Douglas's case, his colleagues were so concerned that they informally agreed that during the last year of his service none of the court's decisions would be valid if his was the deciding vote. They finally pressured him to resign in 1975. A weakened Thurgood Marshall often looked to his fellow octogenarian William Brennan on how to vote because he no longer could hear well enough to understand the arguments other justices made during their conferences.
Over-ripe service on the court has only been a recent phenomenon. From 1789 to 1970, justices left the Supreme Court at an average age of 68 years after only 15 years of service. Since 1970, they have stayed until they were an average of 78 years old and had served a quarter century. "Presidents increasingly look to pick the youngest possible nominee instead of the best person for the job," says Steve Calabresi, a professor at Northwestern Law School who has written a paper on how term limits for justices would work.
Justices are staying longer, and one possible result of it is that their productivity is falling. In 1970, justices issued about 150 full opinions a year, with the help of just two law clerks each. Now each justice has four law clerks and the court issues only about 80 opinions a year, relying on the clerks to screen out 99% of all the petitions for a hearing that are summarily rejected. "[O]ne result is that the Court shuns some unexciting but important cases that it could use to bring more efficiency to our wasteful litigation process," says National Journal columnist Stuart Taylor.
A major reason for justices doggedly hanging on to their seats is, simply put, power. The Framers of the Constitution never envisioned a judiciary as powerful as today's courts. But with that unaccountable power has come an erosion of the court's legitimacy. Many people increasingly question if elderly justices with thought patterns set a half-century ago can fully comprehend court cases that encompass the globalization of the world economy or file-sharing on the Internet. "The Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government," write former law school deans Roger Cramton and Paul Carrington.
Indeed the life tenure for justices in our nation's highest court is an anomaly. No other industrialized democracy has embraced life tenure for its judges, and of the 50 states only Rhode Island appoints its state Supreme Court justices for life. Britain has a mandatory retirement age for its top jurists, while Germany, Italy, Spain and France all appoint them for a fixed number of years.
The various proposals to impose term limits have interesting variations on the same theme. All would exempt sitting justices from any limits, ending arguments that one president could "pack the court." Almost all would set the limit at 18 years, with one seat opening up every two years. Some proposals would seek to change the Constitution, others maintain a mere statute would suffice if the principle of life tenure were retained by giving retiring justices the right to serve on a lower federal court after 18 years.
A major advantage of term limits is that they would limit the temptation for justices to remain in office if the presidency is occupied by someone they are ideologically opposed to. Each president would get to appoint at least two justices. That would end the anomaly of some presidents being unable to make any appointments for an entire term (Jimmy Carter and George W. Bush in his first four years) while others (William Howard Taft) get to appoint four during a single term in office. Confirmation battles, now routinely toxic, might become less so because the stakes would be reduced, with everyone knowing the nominee would serve 18 years instead of a possible 35 or more.
Had a simple 18 year limit been in place when each of the current justices on the court were confirmed, William Rehnquist would have retired in 1990 followed by John Paul Stevens three years later. Sandra Day O'Conner would have left the court in 1999 and Antonin Scalia would have stepped down last year. David Souter, who some conservatives call one of the biggest mistakes made by the first President Bush would have to step down in the final year this President Bush will be in office.
While term limits face an uphill struggle, the idea has popular sentiment behind it. Polls show the general public supports term limits at every level of government and 42 states currently limit the tenure of their governors. But when National Journal polled insiders in Congress it found that only 36% of the Republicans and 30% of the Democrats it surveyed backed the idea. But several members have told me privately that if they could be assured that judicial term limits wouldn't be expanded to cover Congress they would be for them in a heartbeat. Everyone resents and wants to control unaccountable power so long as it's not their own. It's time those of us who don't wear black robes start with the Supreme Court.
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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)
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©2001, John H. Fund